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Injunctions against unknown persons’ protest activity: requirements clarified

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Edwards Amy
Amy Edwards

Senior PSL - Litigation


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25 June 2019

In a judgment hailed as a victory by campaigners for human rights, the Court of Appeal confirmed that although injunctions are available to restrain unknown persons from illegal protest activities, this must be carefully balanced against their right to freedom of expression and peaceful assembly. It warned that a court should be “inherently cautious” about granting such injunctions and clarified the broad principles as to when they can be granted. 

This ruling will be of interest to those organisations in the shale gas and onshore exploration sector as well as other organisations whose activities may endanger the environment and/or local communities and which are likely to lead to public protests: Joseph Boyd & anr v Ineos Upstream Ltd & 9 ors [2019] EWCA Civ 515.

This case arose in the context of highly publicised protests against commercial shale gas exploration (fracking) around the world. The respondents were Ineos Upstream Limited, a company involved with fracking in the UK, various subsidiaries in its group and lessors of office buildings and sites where fracking was intended to take place (together, Ineos). Although fracking is controversial, it is legal in the UK. At first instance Ineos had obtained interim injunctions to restrain potentially unlawful acts by anti-fracking protestors before they occurred (quia timet relief). At the time, no fracking had commenced and for several sites the relevant planning permissions had not yet even been sought. 

The first instance judge granted injunctions (the Injunctions) against four categories of unnamed persons, restraining them from: (i) trespassing; (ii) interfering with private access roads; (iii) interfering with public rights of way; and (iv) conspiring to harm Ineos by unlawful means, eg by intimidation or annoyance, criminal damage, theft, obstructing the public highway by “slow walking”, or interfering with vehicles or traffic equipment, if a reasonable person could obviously see that this could be dangerous. The individual appellants, who had not had a first instance order made against them, obtained permission to appeal against the Injunctions and were therefore joined as defendants. Friends of the Earth were permitted to intervene by way of written submissions. 


The Court of Appeal, in a unanimous judgment (Longmore LJ giving the leading judgment), considered whether the judge had: (i) been right to grant injunctions against persons unknown, but who would come in existence when they commit the anticipated tort; and (ii) failed adequately, or at all, to apply s12(3) Human Rights Act 1998 (HRA) which requires a judge making an interim order in which freedom of expression1 is engaged to assess if the claimant is likely to obtain the relief sought at trial.

Injunction against persons unknown is available, subject to safeguards

The Court of Appeal confirmed that there was no conceptual or legal prohibition that would preclude an injunction to restrain future potentially unlawful activity by a category of unnamed protesters. However, it warned that a “court should be inherently cautious about granting injunctions against unknown persons” and “tentatively” clarified the requirements necessary for such an injunction as follows:

  1. there is a sufficiently real and imminent risk of a tort being committed to justify quia timet relief;
  2. it is impossible to name the persons likely to commit the tort unless restrained;
  3. it is possible to give effective notice of the injunction, and set out the method of such notice in the order;
  4. the terms of the injunction correspond to the threatened tort, and are not so wide that they prohibit lawful conduct;
  5. the terms of the injunction are sufficiently clear and precise as to enable persons potentially affected to know what they must not do; and
  6. the injunction has clear geographical and temporal limits.

The court then applied the above requirements to each of the first instance injunctions. 

Injunctions against trespass and interference with private access roads remitted to judge

The court found that the injunctions against: (i) trespass; and (ii) interfering with private access roads met the first five requirements above but failed to clear the last hurdle, as they lacked a temporal limit. 

The court then also considered s12(3) HRA, under which a court should only grant relief restricting freedom of expression before trial if it is satisfied that the applicant is likely to establish at trial that such publication of views by trespassers on a claimant’s property should not be allowed. It expressed concern that the judge had given little or no consideration to whether the threat of trespass was likely to be established at trial, which was “particularly striking” given that planning permission for fracking had not even been sought for several sites. It also acknowledged the need to take into account the right to freedom of peaceful assembly under the common law as well as under the European Convention on Human Rights, but concluded that this did not extend to a right to trespass.

Accordingly, the court upheld injunctions: (i) and; (ii) but remitted them to the judge for reconsideration on two points: first, whether interim relief should be granted in light of s12(3) HRA; and secondly, what the appropriate duration of those injunctions should be, if they were maintained.

Injunctions relating to public rights of way and intention to harm Ineos discharged 

The court partially allowed the appeal, lifting the injunctions against: (i) interfering with public rights of way; and (ii) conspiring to harm Ineos by unlawful means, concluding that they were too wide and uncertain in ambit. It was not clear that the restrained behaviour would necessarily cause damage to Ineos; moreover, the subjective intention of an unknown individual was susceptible to change. Equally, the concept of “unreasonably” obstructing the highway could not be defined in advance and “slow walking” was likewise undefined and too wide.

The court cautioned that such wide-ranging injunctions should only be granted when events can retrospectively be seen to have been illegal. It warned that these injunctions may well have a “chilling effect” deterring ordinary persons from exercising legitimate rights of protest, as it would likely be unclear to them what they must not do. It emphasised that the “right of protest is not to be diminished by advance fear of committal except in the clearest of cases, of which trespass is perhaps the best example”.


This timely decision, hailed as a victory by campaigners for human rights, was handed down only a few days before the Extinction Rebellion climate change protests led to widespread disruption across London. The court was clearly concerned by the width of some of the injunctions which eroded fundamental freedoms such as the right to protest and freedom of speech. In formulating broad principles to be applied in cases such as these, it tried to strike an appropriate balance between the rights to freedom of expression and peaceful assembly and the rights of private companies carrying on legal activities. In discharging two of the orders, the court showed its disapproval of companies using draconian remedies such as injunctions to intimidate people from participating in lawful protests. The requirements put forward by the court necessary for the grant of injunctions against persons unknown are now likely to be the starting point for future applications against persons unknown who are thought likely to become protesters. In the weeks since this judgment was handed down it has been considered in at least four further cases relating to claims of trespass, although those subsequent judgments are not yet publicly available.


1. Under Article 10, European Convention on Human Rights.